Nothing “New” Other Than a 90 Day Extension of Virtual I-9s

Late in the day, on May 26, Immigration and Customs Enforcement (ICE) announced a 90-day extension for remote Form I-9 inspection, allowing flexibilities to continue through August 31, 2021.

While the U.S. appears to have turned a corner in the fight against COVID-19, most companies have yet to formulate and implement back to work policies. Thank you to ICE and US Citizenship and Immigration Services (USCIS), for allowing these employers to head into the holiday weekend without having to worry about the fate of this anticipated extension.  And thank you for the 90 days, rather than the shorter 30 or 60-day extensions issued previously.

The Devil is in the Details

It would not be an exciting update, if we didn’t have something interesting to point out. The ICE announcement includes two confusing items:

1. The title of the announcement is misleading: ICE announces extension, new employee guidance to I-9 compliance flexibility

In actuality there is nothing new to note, so there is no need to read and reread the guidance.

2. One of the dates was referenced in error: The current extension includes guidance for employees hired on or after June 1, 2021, and working exclusively in a remote setting due to COVID-19-related precautions.

Employers should not be confused by the June 1 date. In fact, the current guidance should have actually referred to April 1, 2021.

At the end of March, DHS announced a change to the requirement that companies must be 100% remote in order to benefit from the relaxation of the physical inspection (of Form I-9 identity and work eligibility documents) guidance.

ICE linked to clarifying guidance describing the easing of restrictions employers, stating, “If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”

Neither of these items change the substance of the announcement and should not be deemed as material in any way.

Any other clarifications?

Following up, on May 18, USCIS’s I-9 Central emailed out an update echoing the March 2021 ICE announcement. Curiously, the communication does not appear on the website. That announcement focused on three key matters:

1. Who can use temporary flexibilities using a forward facing definition.
2. Greater flexibility for employees hired as of April 1, 2021, and working remotely.
3. “Encouragement” from ICE for employers to begin to address any physical inspection backlog.

As a reference, please find below a set of Q&A’s related to the March 2021 Updated Flexibility (There’s nothing new in May folks, we promise!):

Q: Is our entire staff still required to work virtually in order to participate in the remote Form I-9 flexibilities?

No - USCIS confirmed that DHS’s updated guidance states that after April 1, 2021, “employers do not need to have 100% percent of their staff working remotely to use the temporary flexibilities permitting remote inspection.”

Q: How does this updated guidance provide greater flexibility for our company?

According to the USCIS I-9 Central clarification, the greater flexibility is that, “[e]mployees who were hired as of April 1, 2021 and working remotely are exempt from the in-person examination of their Form I-9 identity and employment eligibility document, even if some employees are working in-person at the employer’s worksite.” Therefore, no matter where your workers are working (onsite or at home), for any new hires after April 1 who are working remotely, you can inspect their documents and complete their Form I-9 virtually.

Q: For employees who were hired after April 1, 2021, and participated in our virtual Form I-9 process, when will we need to perform the in-person inspection?

USCIS states that, “[T]his flexibility ends once the employee undertakes non-remote employment on a regular, consistent, or predictable bases, or the extension of the remote inspection flexibilities related to such requirements is terminated, whichever is earlier.”

Q: My company has been doing virtual Forms I-9 since March 2020 and there is a large backlog of in-person inspections that need to be completed. Can we start this process now before the employees actually return to regular, consistent in-office work?

Yes, in fact, based on the USCIS clarifications, DHS encourages employers to, “begin the in-person examination of affected employees’ Form I-9 identity and employment eligibility documentation before such employees return to in-person employment.” As noted above, employers should take note of this guidance and consider using the authorized representative method, where a third party completes the I-9 on behalf of the employer. We discussed this in detail here and here. 

The Crystal Ball

Does the USCIS clarification indicate that employers will have only three days to complete Form I-9s once individual employees return to the workplace?  While the government could consider that standard, we believe ICE will end up keeping things simple, both for employers and for themselves. One way to do that is to have two “stacks” for review: 1) COVID Virtual I-9s, and 2) Post COVID In-Person updated I-9s. The hope is the future ICE Auditors will not drill down into whether or not virtual review was allowed at a certain time frame, but rather will give companies the benefit of the doubt (unless they were egregious violators acting in bad faith). It’s likely ICE will expect all I-9s to be updated by a date certain, then will review the I-9s for such an update update, and use that updated Form for audit purposes. There will, of course, be those I-9s that are frozen in time, where employees were terminated prior to needing to present their documents in-person.  That’s understandable.

Will there be flexibility for employers that welcome large numbers back to the workplace at once?  It’s possible, but in all likelihood and in line with keeping it simple, ICE may offer up a reasonable policy,  providing notice ending the COVID virtual policy including a date certain in which updated, in-person I-9s will need to be completed.  For example, if the virtual policy ends August 31, it’s possible that all Forms will need to updated by December 31.

Will the government ever consider permanent virtual Forms I-9, where in-person inspection is replaced by a carefully delineated process, including a physical inspection via video and confirmation of  identity of the employee?  Keep the faith, we believe this is a real possibility, and ongoing advocacy efforts are critical.  Agency leadership is listening and engaging “early and often”.

While these predictions may ultimately not come to fruition, we have a demonstrated practice of peeking around corners, and have faith that the government will keep a realistic perspective and consider the burden most U.S. business have faced over the past 15 months when rolling out further directives and compliance based policies. 

For any other questions regarding I-9 compliance, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance and DOJ IER anti-discrimination matters contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

(Originally posted to BIG Immigation Law Blog, click here to subscribe.)